A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
If you’re on this blog you probably already know by now that Proposition 8 – the California ban on same-sex marriage – was overturned last night by Justice Vaughn Walker in the case of Perry v. Schwarzenegger. It’s all over the press although the various reports can’t agree on the length of the judgment – some say 136 pages and others 138. Read the full judgment here and decide for yourself (it goes up to 136 pages but the page numbers don’t start on the first page thus it is 138 pages if you can’t the actual number of pieces of paper).
You can read the Bay Area Reporter summary here, the New York Times here (and their editorial here), and the San Francisco Chronicle main story here. They have some fantastic coverage. You can get a UK take via the Guardian here (I can’t find it on the Daily Mail site for some reason).
This case was concerned with constitutional law but Justice Walker recognised the realpolitik of the situation and undertook a detailed examination of marriage – rendering the case more in line with public expectations and attempting to ensure that all avenues were explored, thus avoiding (or hoping to avoid) recriminations at the time of his judgment. The case goes back to 2008 and the elections of that year (when Obama was elected president). California enables the introduction of ‘Propositions’ – something alien to UK audiences, but an idea that the current Coalition government is kicking around. This means that citizens can get a proposal on the ballot paper that people can then vote on. This particular proposition – proposition 8 asked ‘Shall the California Constitution be changed to eliminate the right of same-sex couples to marry providing that only marriage between a man and a woman is valid or recognized in California?’ 52.34% voted in favour and thus the proposition was passed which ultimately led to this legal action. You can read more about the background, the vote and the arguments advanced int he original ballot here.
Let’s not forget that it was originally hoped by the California courts and by Justice Walker that you would be able to see him make the judgment. It was originally planned that the case would take part in a trial of televised cases but those opposing same-sex marriage took their arguments to the US Supreme Court in a bid to stop it. They won as I previously blogged (much to my surprise at the time).
However, this led to a bunch of California based actors taking up the cause and creating video re-creations of the trial. Their site, marriagetrial.com is a fantastic resource. You can watch the full judgment be read out by the Justice Walker actor in their most recent post and you can see the summary of the findings (edited as a separate clip) below:
Given that understanding how many pages the judgment has can be a little confusing, you can imagine how confusing the law might seem to others. However, this is an incredibly well written judgment and you don’t have to be a legal expert to understand and read the judgment. The detailed examination of the witness testimony renders this judgment a must read for law students whatever now happens with this judgment. The US academic historian George Chauncey emerges as a really important influence on the final judgment.
A couple of things struck me about the judgment as soon as I read it last night. Firstly, the judgment is an extraordinary passionate defence of marriage – it praises the unique place that marriage has in our society. For those campaigning for marriage equality, you couldn’t want more. Sections of the Walker judgment that distinguish civil unions from marriage will be of use for those campaigning for full marriage equality under the law in England and Wales. However, this isn’t so helpful for those wanting a greater range of different relationship models and those who want to see marriage stripped of its privileged position. In order to combat the arguments of the right, Justice Walker firmly drives the gay marriage tank onto their lawn in this judgment.
The aspect that I had perhaps not fully appreciated last night, but I sense as I read through the coverage this morning is just how powerful this victory is. Crowds gathered (some say thousands and the separate SF Chronicle images seem to support at least hundreds) to march from the Castro to the Civic Centre. You can see the crowd outside the Civic Center (City Hall) below. You can watch video footage here. Other pictures can be viewed here. It’s easy to forget that this is a decision that will affect people’s lives in a very deep and profound way.
Fox News and right wing homophobes were quick to cast this judgment as the “arrogance of one man”. Presumably, a bit of an issue with most of the court process but never mind. For them, this was a court overturning the will of the people. In a sense, they are right. Maggie Gallagher, the chairman of the National Organization for Marriage has written a powerful op-ed piece in the San Francisco Chronicle today outlining these arguments. Read it here.
So where now? For those more familiar with the law in England and Wales, the US system can seem somewhat baffling. You can see the stages for the Perry case below – following a federal track.
So, given both parties indicated before the judgment that whatever the decision, they would appeal we’ve long known the case was heading for the 9th Circuit Court of Appeal. Commentators expect it will then end up before the US Supreme Court. Pro same-sex campaigners want this in many ways because then there will be a Supreme Court decision on same-sex marriage.
However, this is only a cunning plan if the Supreme Court says they are in favour of same-sex marriage. If they don’t, it could be fairly disastrous – potentially sinking the marriage cause in other states rather than aiding it. I’m hoping to get more of a feel for the mood/aims of the LGBT legal community when I’m back in the States later this month, and will blog my impressions then. In the meantime, you can read more about the court structure here.
It’s terrific win but there’s a long way to go.